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Announcer: Today on Family Talk.

Dr. Dobson: Well hello everyone, I'm James Dobson, and you're listening to Family Talk. Today, of course, is Friday, August 17th, and we began listening yesterday to a recorded discussion that took place here, in Colorado Springs, about three weeks ago. Today we're gonna hear part two of that discussion. There were about 40 people that joined us for that event because they heard about it and came to watch and listen. But the contributors were Dr. Tim Clinton, the executive director of our new Dobson Family Institute, which has an education and public policy component to it. Also with us was Kelly Shackelford, the president and CEO of the First Liberty Institute. His organization is committed to fighting for religious liberty, and to protecting those who have been persecuted for their beliefs. And lastly taking part in the discussion was Family Talk's legal counsel, Martin Nussbaum.

For those of you who didn't hear the broadcast last time, I thought it was a wonderful discussion. It focused on what's happening in the United State, especially in the government, and more specifically, with regard to the judiciary. President Donald Trump has nominated more than 40 judges to the federal court. These are people who are unelected and unaccountable and they will serve for life, so it is extremely important who gets confirmed to those judge seats. And then, of course, the president has nominated Neil Gorsuch, who has been confirmed and now sits on the Supreme Court. That is a game changer for issues related to religious liberty and many areas of public policy, and that's what we talked about last time.

We're gonna hear the second part of that discussion today, and you don't want to miss a word of it. So with that, let's get started, and here now is the remainder of the discussion that occurred several weeks ago here at Family Talk.

Dr. Dobson: Well let's turn to the new nominee for the Supreme Court, Judge Brett Kavanaugh, and there's a massive struggle going on in the US Senate over his confirmation. Take a run at that, either of you, who wanted to address it?

K. Shackelford: To me, the best visual for what the other side is doing with regard to the president's nominees to the Supreme Court is what happened when Gorsuch was picked. They didn't know who he was going to pick, and they were all out on the Supreme Court steps with these signs saying how bad "blank" was. And to me, that's exactly-

Dr. Dobson: Before they even knew-

K. Shackelford: Yeah, they didn't know who it was. And that's what they're doing, I think everybody realizes that. So it really does kind of hurt their credibility. Brett Kavanaugh is an incredibly credentialed person. Brilliant, has 300 judicial opinions from really the highest federal court of appeals in the country, the DC circuit. Is a humble guy, judicial restraint, and judicial humility is kind of how he operates.

Dr. Dobson: You feel good about his nomination?

K. Shackelford: Yes. Let me tell you a couple of reasons why. Number one, almost 20 years ago when he was a young attorney, he donated his time on a religious freedoms case with myself and Jay Sekulow. When you're building your career at one of the largest law firms in the country, for you to go and do something like that means you have a heart for religious freedom, and for the constitution. And so, you want a person with a heart that cares about the constitution. But you want a person with the credentials, the brilliance. He's influenced the Supreme Court in, I think, 13 different opinions where they took his approach and made it their approach.

Okay, this is a very bright legal mind. The criticism of him from people on the Right that has occurred has been because they wanted him to be more aggressive, or activist than he was. For instance, he would have a case and the case would call for him to go only this far, and they wanted him to go further, even though the issue wasn't before him. And, that's just not the kind of judge he is. He doesn't want to be an activist. He wants to go-

Dr. Dobson: Is that what it means to be an originalist?

K. Shackelford: Yes. And a lot of times what I see them criticizing him for is, for instance, that he would issue an opinion, and maybe what he's doing in this case is he knows his case is going to the Supreme Court, and he knows that Justice Kennedy is the swing vote, and so he could go here, a little further, but he's going to lose the Supreme Court. So he goes here. He's a very smart guy. So, I can't think of, if you look at his opinions on the power of the administrative state, he's one of the most strongest guy you're going to see about Chevron deference, I don't want to get too technical about- giving these bureaucrats this power over the people, he's totally against that. His opinions are really strong about returning that power back to the people.

He has incredible opinions on the 2nd amendment, on religious freedom, I mean, you name it, they've been really good.

Dr. Dobson: Roe v. Wade.

K. Shackelford: Obviously, he can't, as a lower court judge, have a Roe v. Wade case. That's gonna be when he gets to the Supreme Court. That'll be an issue that will probably not arise as of, "Are you gonna overturn Roe v. Wade," it'll probably arise in some sort of regulation.

Dr. Dobson: Martin, you told me a few minutes before we went on the air, that you spent the last few days reading about him and some of his cases. So, what did you find?

M. Nussbaum: Yeah, so often we have to work in sound bites and I want to just tell you about his descent in the Priest for Life case. This is one of the contraceptive mandate cases. And I just want to tell you what I saw as I read the opinion of just some key things going on.

The first thing he begins, he talks about the role of a court of appeal. The limited role, how their bound by precedents from the Supreme Court. He's reminding himself and those who read the opinion, we all have a role here and it's limited. That's judicial humility.

The second thing he does is one of the deceits in the contraceptive mandate is they called it the contraceptive mandate. Catholics are opposed to contraceptives, evangelicals are not. It was an attempt to split the kind of intense religious community in our United States, but within the definition of contraceptive, it included abortifacients, and if they can mandate abortifacients, they can mandate surgical abortions, just as HHS later did. And as he talks about the contraceptive mandate, he says, "The insurance must cover all FDA approved contraceptives, including certain methods of birth control that some believe operate as abortifacients." So, he's unmasking their rhetoric in a very calm, appropriate way for a judge.

Dr. Dobson: What is your interpretation of the Conservatism of this judge? Can we count on him when it's all on the line?

M. Nussbaum: Well, we'll never know until after he's confirmed. But, he has many opinions, so he'd have to be pretending for a long time, 300 opinions. And he also seems to me, from what I've been able to learn about him and I knew nothing about him three months ago, is that he's a man of character, he's involved in his church, he's been involved in his church since he was a little boy. And the first night after he visited senators, you know what he did?

Dr. Dobson: Hmm?

M. Nussbaum: And this was caught, not because of a press release, someone walked by and with their cell phone, caught him, he had previously made an appointment to work at his church's soup kitchen, and he was serving sandwiches instead of prepping for next day's meeting with the senators.

Dr. Dobson: Martin, I talked to you the night, I believe, that Judge Kavanaugh was nominated and you weren't too sure at that time. You were reserving judgment, but there were things that bothered you. You have swung a little bit. Is that correct.

M. Nussbaum: Yeah, I have and mostly, I had a favorite. He was not on top of my list, but since I've read his stuff and read his biographies and seen the depth of his devotion to judicial restraint and interpretivism and the history, I'm on board 100%.

Dr. Dobson: Now, Tim, weigh in here, because you have been at the White House, you're in and out of there quite a bit. Is it appropriate to say that you and two or three others meet privately with the President about every six weeks or so?

Dr. Clinton: We've had the privilege of participating in listening sessions led by the White House and the administration. And as a result, we've had numerous opportunities to meet one-on-one with many leaders, including some time with the President.

Dr. Dobson: How do they feel about the possibilities of confirmation?

Dr. Clinton: You know, I think they feel very confident that Judge Kavanaugh is going to confirmed.

I wanted to throw something back over to the two of them. The night that the President announced the nomination of Judge Kavanaugh, I believe he referenced that he was a strong constitutionalist, someone who was faithful to the constitution. Why is that significant? Why were those words by the President appropriate and important, I guess, to all of us.

K. Shackelford: Well, there's a battle that's been going for decades now about how you pick a judge. If you notice, everything that the other side is saying, even what they are criticizing Kavanaugh for, it's not his qualifications, his judicial philosophy, it's, "Oh no! He will overturn ... " And then you name the political issue. They see the courts as a political tool. But judges are not supposed to be politicians. They're not elected, they're not accountable, they go into a back room and make decisions. They are supposed to be humble, they are supposed to restrain themselves and their job is to be constitutionalists, meaning they don't make up the Constitution, they follow the Constitution. They look at what the words mean and say and what they originally meant and they follow them.

Dr. Dobson: But that has not been the way things have operated.

K. Shackelford: No. There's a bunch of judges who think that it's a living, breathing document, which means they can imbue into the words, the Constitution thing. You know, the same thing happens with scripture, right? The same thing happens with pastors who want to, "Well, that one's a little uncomfortable, so I'm gonna have to put some new meaning into that one."

Dr. Dobson: Yeah.

K. Shackelford: And this is what they've been doing with the court. One side sort of says, "This is the outcome I want to come to so I'm gonna get there." The other side, if you notice on the more constitutionalist side, there's not an outcome, there's an approach they're gonna take. They're gonna say, "What does the law say? What is the original meaning?" But don't ask me to change the Constitution, because I'm not gonna do that.

You can see how it would be so tempting if you had the power, as one person, to do what you think is right despite what the law says. And that's the real testing point. And it takes real character and that's why all these opinions are so great with Kavanaugh, to see he won't do that. He's like, "even if I think it's right, my job is not to take the reins of power and do what I think is right. It's to follow the law and to interpret the law.

Dr. Dobson: Martin, weigh in on that.

M. Nussbaum: Kelly's absolutely right. It's- to have power and not use it, is a remarkable thing. It's a remarkable thing. And what's happened too long is that legislative losers have become judicial winners. And that's why it was so unseemly the night that Kavanaugh was nominated, I saw commercials that evening, both for him and against him, as if a political campaign had just begun.

K. Shackelford: Absolutely.

M. Nussbaum: And if judges were humble in playing their roles, and if frankly, as Americans we all understood and bought into the fact that judges should be humble and play their roles, there wouldn't be political campaigns, there wouldn't be TV ads.

Dr. Clinton: I wrote down two statements that have, I think, helped me understand these issues and how to pray.

One is, I think, the progressive left and the sexual revolution piece that is out there, really have used the courts to advocate their agenda. And I've heard Dr. Dobson say many times, the tragedy in modern day life is we have judges legislating morality and dealing with-

Dr. Dobson: Or immorality.

Dr. Clinton: Yeah, yeah, from the bench. From the bench. And that's what's terrifying. That's why I think our discussion here is so significant and what's taking place as we look at the Supreme Court and the lower court appointments. This is a really, really significant time in history and it will have generational legacy effect. It will affect our children and our children's children. The real issue is what will the church do-

Dr. Dobson: Yeah.

Dr. Clinton: With the opportunity, culture.

K. Shackelford: It's going to make a difference because this Justice will be appointed, I think will be on the bench by the sitting in October. An example, we have two cases sitting right now, or will be once all the briefs are in, waiting for the Supreme Court when they come back. One is Coach Kennedy, who was fired for going to a knee to say a silent prayer after the football game. Another one is the Bladensburg Veterans Memorial, a cross that's been up almost 100 years, but now has been ordered to be torn down by a Court of Appeals that, by the way, within its jurisdiction is Arlington National Cemetery. So, that would mean you would have to go into Arlington and tear down the large freestanding cross. These are two cases-

M. Nussbaum: And maybe the cross on every one of those graves.

K. Shackelford: And so this is why another Justice and whether they're gonna follow the Constitution makes a difference, it makes a difference in real cases that are gonna reach there. I think it's obvious that, absent something very unusual, most of these justices are confirmed within about 60 to 65 days. That's their plan here, so if everything goes as scheduled,

Dr. Dobson: We need to be praying about that, don't we?

K. Shackelford: That's something we need to be praying about and all these lower court seats that are waiting, you know, people are waiting for their vote.

Dr. Dobson: Is there anything that our listeners can do to influence the Senate and the way that process plays out?

K. Shackelford: Absolutely. Every single person listening has two senators. And those senators are the ones controlling the vote on these judges. Vote how they want to vote, but vote.

Dr. Dobson: Should be-

K. Shackelford: They're just waiting for a vote.

Dr. Dobson: Should we be petitioning Speaker McConnell?

K. Shackelford: People can reach out to Senator McConnell, obviously, he leads the Senate. I think reaching out to their own senators and saying, "Look, these judges are important to me and there's no reason that they should be languishing." These judges should be voted through and we should be moving and we shouldn't be trying to bottle up the system. So, everybody can call their senator and say, "Please vote these judges through, we need these federal judges on the bench."

M. Nussbaum: Kelly, there's also a delay tactic that's used in the Senate. Can you explain a little bit about that 30 hour rule?

K. Shackelford: Yeah, what's happening right now is their doing this on every one of the President's nominations, whether they're for a cabinet level position or whether it's for a judicial position, it's a 30 hour debate rule where you get a right to sort of 30 hours of debate. They're doing it even when they vote 100% in favor of somebody, they're still doing the delay. It's just a way to clog the system up and that's why so many of these appointments of the President are waiting for their vote.

McConnell can push, really, this through in certain ways. I'm hopeful that he will. A lot of people are watching this summer because there was going to be an August recess, it has been canceled. And a lot of people want to go and campaign, but McConnell has publicly stated, "We are going to get these people through." Because he knows the Senate could change and he needs, they need to do their business while they have the opportunity.

And again, just on the judges alone, these are lifetime appointments and I would encourage people, pray for these judges, for the Senate, and contact your senator and say, "We need these judges on the court."

Dr. Dobson: Martin, tell us where religious liberty is rooted in the Constitution.

M. Nussbaum: It's actually in several places and it's the most distinctive thing about the American experiment because from the time of Constantine until 1787 or 91, establishment of church was the model in all of the west. So, the American experiment with government, the most distinctive thing about it is religious freedom and it's in our Constitution everywhere. It's in the Preamble that references God, it's in the how do we solemnize promises to enter office, you can do it by oath or affirmation, why oath or affirmation? Because Amish and Mennonites would not swear an oath by the ever living God, they would affirm. And that was an accommodation of the religious liberty interests.

Dr. Dobson: How can they override it like they do and have done?

M. Nussbaum: They can because they resent that type of freedom. I mean, that's the secularist revolution that we're in, it's hand in glove with the sexual revolution that we're in and it resents religious freedom. It resents religious folks, it resents religious ideas. All of our young people, as they are launching into life, known in their universities, in their professional schools, in their businesses, there's something you don't talk about, right? It's religion. And when you and I grew up, that's how you figured out who someone was. Oh, you go to-

Dr. Dobson: Our teachers began the day with prayer.

M. Nussbaum: Of course. Of course, because it's critical to who we are. It's critical to who we are.

Dr. Clinton: Kelly, you may want to, just again, talk about the numbers, just to remind everybody how many district court judges are there and how many we're talking about replacing.

K. Shackelford: Yeah, I think there's somewhere around 800 total federal judges and some of that are the federal court of appeals, so I don't have those numbers in front of me. I'm going to guess there's 600 and something district court judges. That's why it's so significant that, I think in the first 18 months, Trump confirmed, got through, confirmed through the Senate, 23 federal court of appeals judges, which was 1/8 of the federal court of appeals. That's really a lot, but what's been delayed is these lower court, the district court judges. They're all kind of bottle necked and now we'll see if they push them through.

Dr. Dobson: Martin, we have about 40 people in our audience today, why does all this matter? Why does it matter to folks who are just living their lives out, going to work, taking care of their children, grandchildren, and they love the country, but don't follow what happens in Washington? They remind me of people who don't like baseball, but watch the World Series. You know, our electorate is like that, they don't pay attention all year long and then comes an election and they are scurrying around to find out what the issues are. Does it matter and why?

M. Nussbaum: Oh, it does and as you know, I'm a religious freedom guy, and I used to think that the greatest miracle of our life, I have five children and I have 12 grandchildren, was that a man and a woman can come together and a child can be born of that union. It just takes my breath away, even yet. But there's a greater miracle yet that we all experience which is this: we're made in the image and likeness of God. What does that mean? We have access to the mind of God. We know right and wrong and it doesn't matter if we're Christian or if we're a tribes person in Borneo, or if we were born in the fourth century, we know right and wrong and we can't begin to explain how we know that through bio-chemistry.

And if you believe that, that that's the most distinctive thing about our humanity, what do we need? Freedom to exercise our conscience, that's what we need. Aristotle said in the Nicomachean Ethics, "You become what you do. If you want to become courageous, engage in acts of courage. If you want to become a harpist, play the harp. If you want to become virtuous, engage in acts of virtue." And so, it's part of our humanity.

And the second reason, I would say, so that's about religious freedom, the second thing I would say is judges that are right on life, the constitutional law regarding life, judges who are right on religious freedom are gonna be rule of law judges on all the other issues. On all the other issues.

Dr. Dobson: That's the fundamental, isn't it?

M. Nussbaum: And go across societies. Read the United States Commission on International Religious Freedom Report on countries that don't respect religious freedom and you will see poor people who are dying and starving in those countries. Because when you don't have the rule of law, you don't have a flourishing of people. You don't have economic progress, it matters for all of those reasons.

Dr. Dobson: And I believe this President will take a stand and he has. I wrote Christianity Today, they asked for my view prior to the election and I explained why I was supporting him. And what I said I wish I could say to the nation, Martin won't let me, but I would if I could. It is this: this man, if elected, will disappoint you at points because he is a flawed individual. He is a flawed vessel just like I am and everybody else is. And he will not always do the right thing. But I believe his heart is in the right place and I believe he will support the things that matter most, and he has.

M. Nussbaum: Amen.

Dr. Dobson: Well, as we bring all this to a close, Tim, address the issue of how you feel walking in to the White House. What is the frame of mind? Are there a preponderance of Christians that are working there and trying to accomplish the same purposes? What kind of advice is he getting? Is there a kind of overall assessment of this presidency?

Dr. Clinton: I think as you reflect on what this first year and half, two years has brought to us, you have to give a nod to the policies of the administration and what's taken place. And let me say this, people of faith are welcomed at the White House. It's not always been that way. People of faith are very welcome. Be encouraged that the very issues that you're talking about, we talk about them every day. And I think the timid-ness within our community is beginning to fade a little bit. People are starting to develop and get their voice back. And I look forward to seeing what's going to happen as we move into the mid-term elections, as we move throughout the rest of this particular term with the president.

And may God do His work in and through us. This clearly is not about us. Thank God that He's still on the throne and as Ms. Shirley would often quote when she led the National Day of Prayer, if our people, who are called by His name, will humble themselves and what?

Dr. Dobson: Pray.

Dr. Clinton: Pray and seek His face.

Dr. Dobson: And turn from their wicked ways.

Dr. Clinton: That's what we do.

Dr. Dobson: Well, this is James Dobson again and I hope you enjoyed and felt enlightened by the discussion that occurred several weeks ago. You heard part two today, and the topics that we talked about, as you just heard, are highly relevant to today. There is not much that occurs in government that is more important than the selection of federal judges, and, of course, the Supreme Court Justices. And now, of course, the U.S. Senate is considering the nomination of Brett Kavanaugh for his own seat on the Supreme Court.

Before we close today, let me just urge you again to register and vote. It is so important. There's not much that you can do to affect the government more than going to the polls and giving fifteen minutes to let your voices be heard. It is extremely important. I just ask you to get yourself informed of the issues and the candidates, go to the polls and let your voices be heard, and then pray, pray, pray, because so much is at stake. Thank you for joining us today. Let us know what you think; we'd love to hear from you.

Announcer: This has been a presentation of the Dr. James Dobson Family Institute.